Employers should review and update company policies and procedures relating to individuals with criminal records.
Employees are legally required to inform their employers of any unspent criminal convictions. However, new legislation that has been introduced has reduced the period that individuals are required to declare these convictions to their employers.
Section 193 of the Police, Crime, Sentencing and Courts Act 2022, which came into force on 28 October 2023, has made significant changes on declaring custodial convictions.
Overview of changes
The following table summarises the changes, which amended the Rehabilitation of Offenders Act (ROA) 1974.
| Sentence | Previous rehabilitation period (once sentence is served) | New rehabilitation period (once sentence is served) |
|---|---|---|
| Custodial sentence of over 4 years* | Never spent | 7 years |
| Custodial sentence of 2 ½ years – 4 years | 7 years | 4 years |
| Custodial sentence of 1 – 2 ½ years | 4 years | 4 years |
| Custodial sentence of 6 months – 1 year | 4 years | 1 year |
| Custodial sentence of up to 6 months | 2 years | 1 year |
* There are exceptions for certain offences, which are considered never spent including offences classified in the Sentencing Code as ‘serious violent, sexual and terrorism offences’ and life sentences. Furthermore, these rehabilitation periods only relate to convictions of those over 18 years old. Youth offenders have slightly reduced disclosure timeframes.
Actions for employers
Employers must recognise these reduced timeframes and ensure that any information previously disclosed is updated, for example on internal HR systems. Employees are under no obligation to disclose convictions that are spent, and this legislation may well require employers to review and remove information about their employees from certain databases. Once a conviction is spent, a person should be treated as having committed no offence at all.
Employers should also review and update company policies and procedures relating to individuals with criminal records, particularly with regard to the recruitment process.
Furthermore, whilst certain professions are not protected by the ROA 1974, such as doctors and solicitors, employees generally cannot be dismissed or prejudiced in any way for failing to disclose a spent conviction under section 4(3) ROA 1974.
Stricter disclosure rules still apply to jobs that involve working with vulnerable people. This legislation leaves verification from the Disclosure and Barring Service (DBS) unaffected as a standard DBS certificate contains details of all convictions and cautions (spent and unspent).
Nevertheless, disclosing criminal convictions can be a daunting prospect for individuals returning to the workplace. The new requirements are a small step towards assisting the wider strategy for rehabilitation of offenders, removing barriers to employment and ensuring fairness in the workplace.
For guidance on ensuring compliance with the new rules when dealing with applicants who you know or suspect to have criminal convictions, speak to our expert employment team.
For further guidance on the new disclosure timeframes for criminal convictions, contact our employment solicitors.
